Standing Committee F

[Mr. Peter Pike in the Chair]

Highways (Obstruction by Body Corporate) Bill

Clause 1 - Liability of officers etc. forobstruction by body corporate

Question proposed, That the clause stand part of the Bill.

Michael Jabez Foster: May I extend my thanks to right hon. and hon. Members who have agreed to take part in consideration in Committee of this important Bill? I also crave your indulgence, Mr. Pike, as I wish to say a few words about the principle of the Bill. This is one of those cases in which a Second Reading speech was written but not given. Therefore, it should not be wasted, although I will be brief as this is a brief Bill, albeit with a reasonably important purpose.
 The Bill is designed to amend the Highways Act 1980 by applying section 314 of that Act to the offences involved in wilfully obstructing a highway, under section 137 of the Act, and of failing to comply with a court order requiring removal of the obstruction, under section 137ZA, a provision that was added later. If enacted, the Bill will enable proceedings to be taken and, most importantly, enforced against officers of a corporate body who are responsible for obstructing rights of way. 
 This is a short Bill, but it has a big purpose. It is designed to fulfil the objective of earlier legislation, which is to ensure that every citizen is free to use public rights of way without obstruction. In that context, a highway means a right of way over which the public have a right: footpaths, bridleways, byways and so on, as well as ordinary roads, of course. 
 Why is the Bill necessary? During the 1990s, Kate Ashbrook, a woman of some resolve, fought a campaign to ensure that a 140-year-old right of way in East Sussex was freed from obstruction. Significant publicity surrounded the case because the true ownership of the land, or certainly the control of it, was vested in one Nicholas van Hoogstraten. However, it is important to say that the Bill is not directed against an individual. Kate Ashbrook's campaign came to the attention of Parliament, which passed the Countryside and Rights of Way Act 2000. That Act contained a measure that amended the 1980 Act.

James Gray: I was hoping that the hon. Gentleman would give due credit to Mr. Jack Dunn, an 86-year-old, who brought the case in the first place and raised it with the Ramblers Association, which weighed in behind him. Mr. Dunn did a fine job in raising the matter.

Michael Jabez Foster: I certainly pay tribute not only to Kate Ashbrook, but to others who supported her campaign. Mr. Dunn should also take credit that the campaign came to the attention of Parliament.

Desmond Turner: I remind my hon. Friend of, and ask him to comment on, the woeful failure of East Sussex county council in respect of the right of way owned by Mr. van Hoogstraten. The council completely failed to carry out its duties as the highways authority.

Michael Jabez Foster: My hon. Friend is right that Kate Ashbrook made enormous efforts to persuade the local authority to do what it could do. She certainly believed—I believe that others shared her view—that the authority was intimidated into doing less than perhaps it could have done. None the less, the authority was restricted in what it could do, because when proceedings were eventually brought, they were thwarted as a result of the lack of an ability to pursue individuals as well as the company.
 The matter was brought to Parliament and the 2000 Act imposed new section 137ZA of the 1980 Act, which gave magistrates the power, when finding someone guilty of obstructing a highway under section 137, to order the removal of the obstruction by a certain date and/or to impose fines if the obstruction was not removed. 
 Importantly for Kate Ashbrook, the remedy was available against a body corporate as well as an individual. Unfortunately, it became obvious that in practice there was a loophole in the law. There was nothing to prevent a paper company from being created to have control over the land or parts of it—even quite a small sliver—over which the courts had no power to extract compliance or fines. That is indeed what happened. The company officers, who were in reality responsible, were able to hide behind the veil of incorporation, where they could not be held to account. 
 When Parliament speaks but its purpose is thwarted, we surely have an obligation to close that loophole, particularly when the issue affects so many of our countrymen. The statistics are clear; I will not go into them all, but rambling, or walking, is most important socially and economically in Great Britain. It is a pastime that has been engaged in by some 45 per cent. of people, I am told. Perhaps more of us should do so. The popularity of that activity is such that it is important that our countrymen and women have the opportunity to take advantage of it. 
 A more fundamental reason for giving our rights of way all the protection that they can get is that one of the fundamental tenets of a free society is that its citizens have the freedom to travel without restriction from one place to another. To block a highway with a menacing sign and a barricade is an oppression of that right. One might go as far as to say that it is a tyranny, and it should be curbed. 
 Clause 1(1) provides that section 314, which already applies personal liability to the officers of corporate bodies responsible for offences under other defined sections of the Act, should be extended similarly to 
 apply personal liability to breaches of sections 137 and 137ZA to close the loophole.

Alun Michael: First, may I say how pleased I am to be a member of this Committee under your chairmanship, Mr. Pike, brief as consideration in Committee will be? Although I know that you preside in the neutral persona of a member of the Chairmen's Panel this morning, may I acknowledge your long-standing chairmanship of the rights of way review committee? That committee has made a significant contribution to promoting understanding and clarity in the sometimes complicated legal framework for rights of way. The Government are grateful for the committee's continuing work on finding consensus wherever possible on the many proposals associated with implementing the 2000 Act.
 There was not an opportunity to do so on Second Reading, so I congratulate my hon. Friend the Member for Hastings and Rye (Mr. Foster) on his success in the private Member's Bill ballot and thank him for taking forward this important Bill. 
 The clause applies section 314 of the 1980 Act to offences under sections 137 and 137ZA of that Act. Those offences concern, respectively, the wilful obstruction of a highway and the failure to comply with an order to remove an obstruction. My hon. Friend has already referred to a particular case about which many Members in all parts of the House expressed concern. It exposed a loophole in the law: by putting the land in question in the ownership of a shell company, it was possible to frustrate the intentions of the law, the efforts of the local authority and decisions of the magistrates on reopening an obstructed right of way. The matter was already a pretty ancient case of dispute when I took up my current responsibilities for rights of way. It was frustrating for anybody who cares about these issues that it appeared that there was no way to reach a conclusion. 
 The Bill will close the loophole to which my hon. Friend referred and enable local authorities to ensure that the intentions of Parliament can be enforced, although we will still require decisions and actions to be taken to bring issues before a magistrates court. As a Department, we seek to work with and encourage local authorities in the maintenance of the rights of way network. As my hon. Friend said, that network is enormously important to local economies in virtually every part of the country. It is also important to people in rural areas, because of its significance to the rural economy, and to those in the country and those in the town who enjoy using it. 
 Applying section 314 to these offences will ensure that where a body corporate commits an offence of wilfully obstructing a highway or of failing to comply with an order to remove an obstruction, and it is proved that the offence was committed with the consent, connivance or neglect of an officer of the body corporate, that officer may also be found guilty of that offence. 
 The Bill's provisions will apply to offences committed under section 137, which covers wilful obstruction of a highway, and section 137ZA, which covers failure to comply with an order to remove an obstruction, after the commencement of the Bill, regardless of whether the order to remove the obstruction made under section 137ZA was made before or after commencement. I am happy to back the Bill and I hope that it receives support from both sides of the Committee.

James Gray: I join the Minister in welcoming you, Mr. Pike, and I congratulate you on your work over the years on the important issue of rights of way. I am confident that your job will not be excessively difficult, because this is the third or fourth Committee in which I have found myself opposite the Minister and agreeing with most of what he has said. That is extremely worrying to admit, and I shall ensure that it does not carry on for too long. This may also undermine the Minister's political career, so we will not dwell on it.
 I add my congratulations to the hon. Member for Hastings and Rye on having the initiative to introduce what is demonstrably a sensible and well thought out Bill. I am glad that the Bill received what was probably the shortest Second Reading in history and that my hon. Friends were happy to allow it to progress to this Committee. 
 Like the Minister, the Opposition are committed to finding every possible way of allowing all those who want to do so to enjoy the countryside, which Mr. van Hoogstraten, and perhaps others like him for all I know, were demonstrably failing to do. It was disgraceful that he chose to use a shell company to establish barriers and, at one stage, a barn to block off access to his land. It might have been much more sensible for him to take a positive approach and attempt to divert the right of way. 
 There is something to be said for that approach, and there are many instances of rights being changed. For example, just outside my constituency on the Wiltshire downs, a large number of rights of way have been sensibly diverted to paths that are much better for walkers. Many rights of way used to stop in the middle of fields, so diverting them can improve the rights of way network. Mr. van Hoogstraten chose not to do that, but to shelter behind a disgraceful loophole in the law. We should all decry that and welcome the thrust of the Bill in putting it right. 
 I have some questions for the Bill's promoter, and the Minister might also reply to them. I am slightly concerned about the effect that the Bill may have on charities or voluntary organisations, and we should be clear about the fact that there are no untoward or unintended consequences for either. I cannot imagine how there would be, but one or two interested parties have flagged up the possibility that there might be a problem. Will the hon. Member for Hastings and Rye clarify that point? 
 The general principle of retrospection is one that, on constitutional grounds, all members of the Committee would decry. We cannot introduce laws that are retroactive, so I hope that the hon. Gentleman 
 confirms that there is no such intention, that previous breaches are in the past and that the Bill's purpose is to ensure that such breaches do not happen again. 
 That is an important point. To use an example that we have mentioned several times this morning, Mr. van Hoogstraten would not be prosecuted under the Bill unless he repeated the offence. I make that point not, I hasten to add, because I am in any way, shape or form an apologist for or defender of Mr. van Hoogstraten—quite the opposite, as he deserves all that is coming to him. Perhaps I should not have said that on the record—I claim privilege. I am not trying to defend his actions, but on the general principle we should make it plain that the Bill will not apply retroactively.

Alun Michael: The Bill is not retrospective in that sense, as the measures can apply only after it becomes law. An order to clear may be made before the Bill commences, but the process of enforcement would not start until it becomes law. I can give the hon. Gentleman the reassurance he seeks.

James Gray: That is most helpful and a perfectly reasonable approach. If the order to clear had not been observed by the time the Bill became law, the activity would then become a criminal one, and quite right too. My two brief questions concerned the only things in the Bill that I could spot.

Alun Michael: May I clarify the point about charities? If I have interpreted the question correctly, the hon. Gentleman is talking about a situation involving an officer of a charity that had been established as a charitable company limited by guarantee. In that situation, an individual could become liable under the Bill, but only if it were proved that there had been consent, connivance or neglect by an officer of the charity in obeying the law. I do not think that there could be any unintended consequences. Clearly, a company that happens to be a charity will be expected to obey the law. It is unlikely that problems would arise for a charity, except in precisely the circumstances that I described. I do not think that there could be an unintentional impact on a charity, which is, I think, the hon. Gentleman's concern.

James Gray: Again, I am grateful to the Minister for his clarification. I was concerned that the Bill could inadvertently catch officers of a charity or voluntary organisation who had behaved perfectly properly. I am happy to be assured that that is not the case.
 That dealt with, it remains only to say that Conservative Members strongly support the right of the citizen to use our highways and byways for ready access to the countryside. Indeed, we vastly prefer the use of rights of way to the open access that was introduced under the Countryside and Rights of Way Act 2000. We therefore decry those actions that the Bill is designed to stop and welcome the intention behind it.

Norman Baker: I am delighted on behalf of the Liberal Democrats to support the Bill in its entirety and to offer my congratulations to the hon. Member for Hastings and Rye on bringing it forward. I am reminded of the days when we were on East Sussex county council together, alongside the hon. Member for Brighton, Kemptown (Dr. Turner). To be discussing East Sussex matters today, almost in an East Sussex forum, is useful.
 Just for the record, I should say that the hon. Members for Brighton, Kemptown, for Brighton, Pavilion (Mr. Lepper) and for Wealden (Charles Hendry), myself—the Member for Lewes—and the hon. Member for Hastings and Rye are here, as, indeed, are the hon. Member for Crawley (Laura Moffatt), who is almost an honorary East Sussex Member, and others with connections. The hon. Member for St. Ives (Andrew George), for instance, stayed in Lewes in his student days, so there is a connection there as well.

Peter Bradley: Was he at Sussex? So was I.

Norman Baker: In that case, there are even more Sussex connections. Any more offers are welcome.
 The Bill concerns an important matter. Although it was spurred on by the event in East Sussex with which we are all familiar, it will be applicable and useful over a much wider area, especially when there are attempts like that of Mr. van Hoogstraten to use the law to subvert the wishes of those who wish to exercise their right of way. The Bill is a model of legislation: it is brief, relevant, apposite and well drafted. In fact, it leads me to conclude that there should be more private Member's Bills and fewer Government Bills. 
 I need say no more than that, if the newspapers are to be believed, Mr. van Hoogstraten is to spend more time in Zimbabwe. He may find it more difficult to exercise his land rights in Zimbabwe than he does in the United Kingdom.

David Lepper: Is the hon. Gentleman absolutely certain on that point? I understand that Mr. van Hoogstraten also has land holdings in Cannes, Cap Ferrat, Monte Carlo, Maryland, Florida and Barbados. One wonders why he made such a fuss over one footpath in East Sussex.

Peter Pike: Order. We are not legislating for any of those places.

Norman Baker: I am slightly alarmed that the hon. Member for Brighton, Pavilion is so familiar with Mr. van Hoogstraten's activities. However, I note his point.

Charles Hendry: As Mr. van Hoogstraten's Member of Parliament, I am happy to say that he is welcome to spend time in Cannes, Barbados and any other part of the world, especially Zimbabwe.
 Will directors of British companies that break the law in this way be beyond the reach of this law if they are resident abroad and do not live in this country?

Norman Baker: That is a very important question, which I am supremely unqualified to answer. Perhaps
 someone on the Government Benches will take that up.
 In conclusion, I wish the Bill well, and I hope that it has a speedy passage to enactment and the statute book.

Michael Jabez Foster: I thank hon. Members for their supportive statements. As the hon. Member for Lewes (Norman Baker) said, the Committee is a little like an East Sussex reunion, but as he also said, the Bill has wider applications. The hon. Member for North Wiltshire (Mr. Gray) made intemperate comments about Mr. van Hoogstraten. For the record, I totally dissociate myself from any such comments!

James Gray: Will the hon. Gentleman admit that he winked and grinned as he said that?

Michael Jabez Foster: I am sure that the record will be corrected in due course. I welcome the support given by Members who intervened. All support the Bill, including the hon. Member for Wealden, whose support I very much welcome, although I suspect that a postal vote application will not help him in view of the fact that some of his constituents are moving away.
 As the Minister indicated, the Bill is not intended to be retrospective. The unlawful act of barring a highway might predate the Bill, but it will be the continuing barring or failure to comply with a subsequent order that will be the offence. The original offence might predate the Bill, but a wrongful act would have to be subsequent to the Bill. 
 The Minister has already dealt with the question of charities. I certainly expect charities to behave responsibly. I cannot believe that responsible landowners, let alone charities, will wilfully obstruct such rights of way. 
 I am grateful for your chairmanship, Mr. Pike, and for my colleagues' support for the Bill.

Charles Hendry: Will the hon. Gentleman answer my question about whether directors of companies in breach of this law who are resident abroad could be prosecuted under this provision?

Michael Jabez Foster: I hope that the Minister will be able to help to answer that question. I understand that the general rule will apply, and that in the case of a director with assets in this country, it would be possible to pursue those assets to enforce an order that had been brought against the director. The director would, of course, have to be brought before the court in some way.

Alun Michael: The law clearly applies to a company operating in this country, but there may be complications if an individual lives abroad. I am happy to write to members of the Committee to clarify company law in relation to that point. Prosecution is not the purpose: the purpose is to ensure that there is no way of frustrating the intentions of the law in re-opening the right of way. That does not undermine the Bill's effectiveness in relation to companies, but I
 understand Members' interest in how the Bill could affect individuals.

Michael Jabez Foster: I am grateful for the Minister's clarification. I must say, however, that enforcement is what is important, because lack of enforcement is the evil that we seek to remedy. As the Minister said, the usual company law relating to enforcement against directors would apply. I am grateful to him for agreeing to clarify that.

David Lepper: Does my hon. Friend agree that if the Bill becomes law—we hope that it does—it is important that full publicity be given to the change? Although reference has been made to a particular case which seemed to involve wilful disobedience of a court decision, it is not impossible to conceive of instances in which, because of arrangements that companies have made, someone might innocently fall foul of the law.

Michael Jabez Foster: I am grateful to my hon. Friend. I hope that the change will be widely known, but I am not too concerned about people not knowing—it needs to be wilful obstruction, so people will not innocently fall into the trap. None the less, it is right that people should know of the change. I hope that the publicity will extend beyond the Hastings and St. Leonards Observer or the Evening Argus. Although the Bill originated from an event that happened in Sussex, it will have a much wider application.

Alun Michael: In response to the earlier intervention, the point needs to be made that we are dealing with the failure to comply with an order. It is not a question of someone causing an obstruction accidentally; an order would need to be made requiring the removal of an obstruction. I reassure the Committee on that point.
 As to general publicity, if, as we hope, the Bill becomes law, it is my intention that we will write to all local authorities, drawing their attention to the change. We will also publicise the change through the rights of way community, the network of rights of way committees in each local authority area. That will make it much easier to ensure that all who need to know, whether landowners, walkers or others with an interest in access to land, are aware of the change.

Michael Jabez Foster: I am grateful to my right hon. Friend. I am sure that the Ramblers Association and others with a special interest will make sure that everyone knows of the change.
 I have answered all the comments raised this morning. I thank you once again, Mr. Pike, for your chairmanship of the Committee. I also thank all who supported the Bill. The fact that it is such a short Bill may have made that support easier. 
 Question put and agreed to. 
 Clause 1 ordered to stand part of the Bill. 
 Clause 2 ordered to stand part of the Bill. 
 Bill to be reported, without amendment. 
 Committee rose at two minutes to Ten o'clock.